Atienza Mcmary Mahaguay v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1043/2023 [2026] HKCFI 4556 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1043 of 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
Observations for the Applicant: Introduction 1.By Form 86 filed on 28 June 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 23 June 2023 (the “Board’s Decision”). 2.In the Form 86, the Applicant has named the Board as the proposed respondent and also the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion. 3.An oral hearing was requested by the Applicant. It took place before me on 22 July 2026 (the “Hearing”) and the Applicant attended in person. Background 4.The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is unnecessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In summary, the Applicant came to Hong Kong to work as a domestic helper but has remained here notwithstanding the termination of her employment contract since November 2020. She claims that her life will be in danger if she returns to her home country because she allegedly witnessed a murder. She is afraid that she will be harmed by the murderer (“the Adversary”). Discussion 5.This kind of leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence, the brief reasons for my decision are set out below. 6.The applicable general principles are trite. It has been repeatedly emphasised by appellate courts that judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. 7.The determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which this court will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 8.An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16. 9.In the Form 86 and her affidavit in support, the Applicant did not provide any ground of review. At the Hearing, the Applicant confirmed she had nothing else to add. On account of such failure to put forward an effective ground of review, the Leave Application should be dismissed. 10.In any event, having read the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality which can give rise to a reasonably arguable case for review. 11.I am satisfied that the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the evidence put before it. Amongst others, the Board was plainly correct in finding that there was no evidence of any real risk of serious harm as the Applicant’s claim of danger from the Adversary is entirely speculative. She herself had conceded to the Board that there was no evidence that the Adversary had suspected that she would report him to the police about the murder (§§46-47, 63, 73-74). 12.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review. Conclusion 13.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed. Dated the 21st day of August 2026
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Form CALL-1 |
Cases cited in this judgment